TERRITORIAL SOVEREIGNTY Prof David K. Linnan USC LAW # 783 Unit Seven

ACQUISITION OF TERRITORIAL SOVEREIGNTY IDEAS IN PLAY 1.Traditional ideas of terra nullius and “savage” society versus locally organized peoples (colonization vs modern views of indigenous rights)terra nulliusmodern views of indigenous rights 2.More recently, arguing often over resources (can be offshore, e.g., fish & oil in 200 mile EEZ)offshore, e.g., fish & oil in 200 mile EEZ 3.Intertemporal doctrine (change over time in legal principles, traditionally viewed as historical law problem as with conquest of territory, but now seeing application arguably in EU setting where rules are changing during past 50 years )

MODERN APPROACHES IDEAS IN PLAY (CONT’D) 3.Title to land doctrinal categories (details later) 4.Boundary and related doctrines (often offshore, example of Timor Gap dispute among Portugal, Indonesia & Australia)Timor Gap dispute 5.Territorial sovereignty arguments typically relative claims, meaning which state has better claim in asserting different bases for claim

ASEAN & AUSSIE MAP

ISLAND OF PALMAS ISLAND OF PALMAS (US v. NETHERLANDS 1928 ARB) Palmas as island between Dutch East Indies (now Indonesia) & Philippines (then colony, now independent) claimed by both US & Netherlands (within Philippine marine boundary, but claimed by Dutch) US claim based initially on discovery title as successor in interest to Spain through Philippines following 1898 Spanish-American War Dutch claim have possessed and exercised sovereignty from 1677 or perhaps before 1648 to 1920s

TITLE OVER TIME I SLAND OF PALMAS (CONT’D) Arbitrator indicates “inchoate” nature of original Spanish title based on discovery but with not effective follow up assertion of sovereignty, indication that while discovery may have been enough under 16 th century international law views to assert territorial rights some occasional exercise of sovereignty required by 1900s Query, what constitutes manifestation of territorial sovereignty at differing places and times? How to apply the intertemporal law doctrine?

PALMAS & TRADITIONAL THEORIES HOW TO DISTINGUISH AMONG 1.Title of discovery (inchoate, terra nullius concept related)? 2.Title of sovereignty (requiring continuous and peaceful display of State authority during a long period of time)? 3.Title of contiguity (is being adjacent enough)? Problem in asserting sovereignty by peaceful display where few people, no civilization & isolation

GREENLAND MAP

EASTERN GREENLAND LEGAL STATUS OF EASTERN GREENLAND (DENMARK V. NORWAY PCIJ 1933) Norwegian proclamation of 1931 purported to place portions of eastern Greenland under Norwegian sovereignty on theory it was terra nullius rather than Danish, whereas Denmark claimed all of Greenland essentially under its historical occupation of other parts Citing Palmas arbitration, Denmark claimed title “founded on the peaceful and continuous display of State authority over the island” Query, what elements are required for sovereignty title? What is the effect of other states’ behavior?

CONTINUED DISPLAY EASTERN GREENLAND (CONT’D) Title based upon continued display of authority (sovereignty) requires two elements: 1.intention & will to act as sovereign 2.Some actual exercise or display of authority

NORWAY ESTOPPED EASTERN GREENLAND (CONT’D) Issue of competing claims normally (up to 1931 none here), third party states had recognized Danish claims implicitly by excluding Greenland under treaties Norway estopped too because: 1. party to those treaties implicitly addressing Greenland’s ownership 2. Norway had given express understanding to Danish government not to contest

DOCTRINE CATALOGUE MISCELLANEOUS DOCTRINAL CONCEPTS 1.Contiguity 2.Prescription as title founded on long and peaceful possession (not municipal law’s adverse possession, but rather sovereignty-based) 3.Consolidation (viewing title acquisition as process over time, essentially relativist process view as opposed to snap-shot norm view)

CATALOGUE II MISCELLANEOUS DOCTRINAL CONCEPTS 4.Uti possidetis juris (power of preexisting boundaries, relevant on boundaries but also implicitly:Uti possidetis juris 1.Contiguity claims in negating terra nullius claims historically as in analyzing modern territory claims as in Central & South America going back to 19 th century independence from Spain, 2.Applied in modern decolonization such as 1950s-1960s in Africa for state boundaries per se disregarding ethnicity, and 3.Most recently 1990s Former Yugoslavian break up, problems referred to previously under self-determination)

CATALOGUE III MISCELLANEOUS DOCTRINAL CONCEPTS (CONT’D) 5. Accretion Traditional center navigation channel view & Rio GrandeRio Grande 6. Cession Example as with Swiss/French Airports Basel as shared facility Geneva runway extension

CATALOGUE IV MISCELLANEOUS DOCTRINAL CONCEPTS (CONT’D) 7. Conquest Permitted prior to circa 1920 so historically applicable perhaps under inter-temporal doctrine Modern prohibition on use of armed forceModern prohibition on use of armed force for such purposes (our units 9-11) Current problematic West Bank & Israeli control post Six Day War, underlying disputes like current security fence controversy Israeli viewOpposing view

BOUNDARIES & ZONES BOUNDARIES & ZONES AS SUCH UTI POSSIDETIS JURISUTI POSSIDETIS JURIS (boundaries plus, just reviewed) LAW OF SEA (LOS 1982) Changing law since pre-WW II traditional 3 mile canon-shot rule, continental shelf principles under Truman, etc. Zone conceptZone concept for maritime law in terms of territorial waters assimilated to territory to 12 miles, contiguous regulatory zone extending 24 miles from territorial sea, exclusive economic zone (EEZ) extending 200 miles from territorial sea but innocent passage AIRSPACE ISSUESAIRSPACE ISSUES (1944 Chicago Convention & ICAO, with problems of no innocent passage as with LOS because over land-- WW I security issues with new air vessels, except archipelagic sea lanes passage now for aircraft with recent US/Indonesia incident)1944 Chicago ConventionICAO

PARACELS & SPRATLEYS WHERE ARE THE SPRATLEYS, WHICH SEVERAL ASIAN COUNTRIES CLAIM? In preparation for discussing Unit Seven problem, look also at Spratley Islands’ map for physical location between Vietnam, China, Philippines & Kalimantan (Malaysia/Indonesia)Unit Seven problem map Why claim some islands in the middle of nowhere?